Gavalas and Theodorakis
[2018] FCCA 2034
•14 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAVALAS & THEODORAKIS | [2018] FCCA 2034 |
| Catchwords: FAMILY LAW – Interim parenting – lengthy history of litigation – where father retains children contrary to consent final orders – where father persists in making unfounded claims in relation to the children – children returned to their mother and temporary suspension of father’s time with them. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR GAVALAS |
| Respondent: | MS THEODORAKIS |
| File Number: | WOC 350 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 13 July 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher Adams & Associates |
| Counsel for the Respondent: | Carter Ferguson Solicitors & Attorneys |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Following release of these Reasons for Judgment, the Father promptly leave the Federal Circuit Court, Sydney Registry building and the vicinity of the Sydney Registry precinct and thereafter remain at least 100m away from the vicinity of the Sydney Registry precinct for the remainder of the day.
Following release of these Reasons for Judgment and pursuant to s.68B of the Family Law Act 1975 (hereafter referred to as ‘the Act’), the Father be restrained from approaching or attempting to contact the Children by any means, including through a third party, as he is leaving the Federal Circuit Court Sydney Registry building.
That the Mother be permitted to collect the Children from the child care facilities at the Federal Circuit Court, Sydney Registry immediately following the release of these Reasons for Judgment.
That the Orders made 12 June 2018 be discharged.
That the Mother and Father have equal shared parental responsibility for the children, [Y] born 2006 and [X] born 2008 (“the children”) except in relation to health issues.
Notwithstanding Order 5 above, the Mother be permitted to re-enrol the Children in the school they were previously attending without the Father’s signature or consent.
That the Mother have sole parental responsibility for the children in relation to health issues subject to the following:
(a)The Mother shall keep the Father informed at all times of the name and address of any treating medical practitioner or other health professional who treats the children;
(b)The Mother shall notify the Father:
(i)As soon as practical after having made an appointment for the children to attend any specialist medical appointment; and
(ii)Within twenty-four (24) hours of the children having attended any specialist medical appointment.
(c)The Mother will authorise each treating medical practitioner and health professional who treats the children to provide the Father with information regarding the children’s diagnosis, treatment and prognosis and to discuss these matters with the Father;
(d)The Mother shall notify the Father of any serious illness, injury or medical emergency affecting the children as soon as reasonably practical;
(e)The Mother shall notify the Father of any proposed treatment or non-routine medical testing, such notification to be in writing and at least six weeks prior to commencing such treatment of carrying out such treatment and shall provide reasons for the proposed treatment and/or testing;
(f)The Mother shall take into consideration the views of the Father in relation to the proposed treatment and/or testing and the Mother and the Father shall use their best endeavours to reach an agreed position in relation to the proposed treatment and/or testing;
(g)The Mother shall consider any proposal by the Father for medical treatment and/testing for the children, such proposal to be in writing and to state the reasons for the proposed treatment and/testing;
(h)In the event that the Mother and the Father have not reached an agreed position in relation to any proposed treatment and/or testing within six (6) weeks of the Mother or the Father having notified the other, the Mother shall be entitled to make the final decision, provided that such decision is consistent with medical advice provided in writing by an appropriately qualified medical practitioner or health professional.
That the Father shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are spending time with the Father.
That the Mother shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are living with or spending time with the Mother.
That the children live with the Mother.
Unless otherwise agreed between the Mother and the Father in writing, the children shall spend time with the Father as follows:
(a)During school term as follows:
(i)Each alternate weekend from the end of the school day (or 3:00pm if not a school day) on Friday until the start of the school day (or 9:00am if not a school day) on the following Monday, commencing on the second weekend following the date of these Orders and recommencing on the first weekend of each school Term; and
(ii)If the Father is living within thirty (30) minutes driving time (as calculated by a public mapping service such as whereis.com.au) of the children’s school(s), each Tuesday evening from the end of the school day until the start of school the following day;
(iii)If the Father is living more than thirty (30) minutes driving time (as calculated by a public mapping service such as whereis.com.au) of the children’s school(s), each Tuesday evening from the end of the school day until 7:00pm.
(b)During the school holiday periods at the end of Term 1, 2 and 3, from the end of school on the last day of the school term until 6:00pm on the second Saturday of the school holiday period.
(c)During the school holiday periods at the end of Term 4 as follows:
(i)Where the school holiday period commences in an odd numbered year (eg. 2015):
A.For a period of seven (7) consecutive nights commencing at 10:00am on the first day after the last day of the gazetted school term and concluding at 10:00am seven days later; and
B.From 10:00am on 2 January until 10:00an on 14 January.
(ii)Where the school holiday period commences in an even numbered year (eg. 2016):
A.For a period of seven (7) consecutive nights commencing at 10:00am on the eighth day after the last day of the gazetted school term and concluding at 10:00am seven (7) days later; and
B.From 10:00am on 14 January until 10:00am on 26 January.
(d)On Father’s Day, in the event that the children are not already spending time with the Father, from 9am until the start of the school day (or 9:00am if not a school day) on the following day;
(e)on the children’s birthdays, the Father’s birthday, the children’s name days (“significant days”) as follows:
(i)if the significant day falls on a school day, for a period of 3 hours as agreed between the parties in writing and failing agreement, from the conclusion of school until 6pm; and
(ii)if the significant day falls on a weekend, for a period of 4 hours as agreed between the parties in writing and failing agreement from 2pm to 6pm;
(f)From 2pm Greek Orthodox Easter Saturday until 10am Greek Orthodox Easter Sunday during even numbered years and from 10am on Greek Orthodox Easter Sunday to the start of the school day (or 9:00am if not a school day) on the following day during all odd numbered years.
Notwithstanding these Orders, the Father’s time shall be suspended and the Mother shall spend additional time on the following special occasions:
(a)on Mother’s Day, in the event that the children are not already spending time with the Mother, from 9am until the start of the school day (or 9:00am if not a school day) on the following day;
(b)on the children’s birthdays, the Mother’s birthday, the children’s name days (“significant days”) in the event that the children are not already spending time with the Mother that day, as follows:
(i)if the significant day falls on a school day, for a period of 3 hours as agreed between the parties in writing and failing agreement, from the conclusion of school until 6pm; and
(ii)if the significant day falls on a weekend, for a period of 4 hours as agreed between the parties in writing and failing agreement from 2pm to 6pm;
(c)from 2pm on Greek Orthodox Easter Saturday until 10am Greek Orthodox Easter Sunday during all odd numbered years and from 10am on Greek Orthodox Easter Sunday to the start of the school day (or 9:00am if not a school day) on the following day during all even numbered years.
That each parent shall be permitted to communicate with the children by telephone or electronic means when the children are in the care of the other parent between 5.30pm to 6.00pm every day that the children are in the care of the other parent.
That, for the purpose of facilitating the telephone communication between the children and each parent, the parent who does not have the care of the children is to telephone the other parent’s mobile telephone or home phone.
That the Mother and the Father shall facilitate the children calling the other parent at any reasonable time that the children may request.
That for the purposes of facilitating these Orders, when the children are not attending school, changeovers shall take place at Suburb A McDonalds.
Orders 8 and 11-16 above be suspended for a period of four weeks, with the Children’s time with the Father to recommence on 14 September 2018 in accordance with Order 10(a)(i) above.
During the period referred to in Order 17 above, the Father be restrained pursuant to s.68B of the Act from:
(a)At empting to contact the Children by any means, including through a third party;
(b)approaching or coming within 100 metres of any place where the Children might reside from time to time;
(c)approaching or coming within 100 metres of any place where the Children might attend care or school;
That neither the Mother or the Father shall denigrate the other party or their family in the presence of or within the hearing of the children and use their best endeavours to ensure that no third party does so.
The Mother and Father are restrained by injunction from:
(a)using physical discipline with the children;
(b)discussing adult issues with the children or in the presence or hearing of the children;
(c)discussing these proceedings or any allegations raised in these proceedings with the children or in the presence or hearing of the children; and
(d)showing any documents filed or relating to these proceedings to the children.
That for the purposes of communicating information concerning the care of the children, the parties shall:
(a)communicate by telephone or text message for matters of an urgent nature; and
(b)communicate by writing or email for matters of a non-urgent nature.
That the Mother and the Father shall keep the other informed of his or her contact telephone numbers and residential address and will advise the other parent within seven days of any change of the contact telephone numbers or residential address.
That the Mother and the Father shall as soon as reasonably practicable:
(a)inform the other parent when a serious illness, emergency or injury to the children is sustained whilst in their care; and
(b)ensure the other parent is notified if whilst in his or her care, either child is required to take medication in which care the parent shall provide the other parent with the details of the medication required to be taken and provide the other parent with sufficient medication to cover the time being cared for by the other parent in circumstances where it is prescription medication.
That the Mother and the Father are to keep each other informed at all times of the name and address of any treating medical practitioner or other health professional who treats the child and authorise each treating medical practitioner and health professional treating the child to provide the other parent with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the child’s requirements.
That both the Mother and the Father are authorised by these Orders to receive directly from the children’s school a copy of the children’s school reports, school photos (at that parent’s cost), school newsletters and any other written notification from the children’s school.
That the both the Mother and the Father shall be permitted to attend:
(a)any school event relating to either of the children which parents are ordinarily invited to attend;
(b)the children’s extra-curricular activities that allow for parental attendance or participation; and
(c)any of the children’s treating medical or health professionals;
with such Order to be suspended as regards the Father in accordance with Orders 17-18 above.
THE COURT FURTHER ORDERS THAT:
Within 14 days, the Registry Manager provide a copy of these Orders to:
(a)The Registrar, Principal Officer or other appropriate officer of the Local Court, Wollongong;
(b)The Commissioner of the New South Wales Police; and
(c)A child welfare officer of the Department of Family and Community Services.
Leave be granted to the parties to file Consent Orders in Chambers appointing Dr P as the Pt.15 Expert.
That the matter be adjourned to 21 November 2018 at 9:30am for Mention.
Leave be granted to the Independent Children’s Lawyer to relist the matter on 72 hours’ notice.
THE COURT NOTES THAT:
A.The Court has considered these Orders in light of s.68P of the Act, and does not regard these Orders as being inconsistent with the Provisional Apprehended Domestic Violence Order dated 22 April 2018.
IT IS NOTED that publication of this judgment under the pseudonym Gavalas & Theodorakis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 350 of 2013
| MR GAVALAS |
Applicant
And
| MS THEODORAKIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [Y], who is 11, and [X], who is 9. This Judgment explains the very difficult decision the Court has made about where the children should be living and what time they should be spending with their other parent. The great tragedy in this case is that the parents of these children have been litigating about them now for five years, which is just under half of [Y]’s life, and just over half of [X]’s life. This was a difficult decision, in a complex case, which needs to be made on an interim basis without the benefit of anything other than preliminary Expert evidence, and without the benefit of cross-examination. Because of this, it will be necessary to consider some of the evidence in detail.
Background
The children’s Father is the Applicant in this case. He is 39 years old and lives in the Suburb B region of New South Wales. The children’s Mother is the Respondent. She is 41 years old and lives in a inner suburb of Sydney. They commenced cohabitation in 2002 and married in 2003. Separation took place in March 2013. The relationship probably ended then, but certainly ended no later than the following month. By June 2013 proceedings had been commenced in the Wollongong Registry of this Court. Those proceedings were settled by the making of Final Consent Orders on 24 August 2015. Those Orders are detailed and reflect the complexity of the case which presented at the time, as well as the detailed consideration that was given by the parents, their Solicitors, their Counsel, the Independent Children’s Lawyer, and by Counsel for the Independent Children’s Lawyer. The parents believed that these Orders were in the best interests of the children. The Court made the Order on the same basis. The Orders in question are reproduced in the first schedule to these Reasons. In short, the Orders provide for both parents to have equal shared parental responsibility but for the Mother to have sole parental responsibility for the children in relation to health issues, subject to a number of conditions. The children would live with their mother, but spend substantial and significant time with their father. In short, he would have the children for five nights out of fourteen, as well as during school holidays and on special occasions.
The Consent Orders, and the making of those Orders by the Court, was informed by a Report prepared by Dr P dated 13 August 2014. It will be necessary to refer to extensive parts of Dr P's Report. Thus, in the second schedule to these reasons, the Court has extracted the following paragraphs from Dr P's Report: 131-134, 135-160, 166-180, 187-207, 208-222, 232-260, and 312-317.3.
As will be seen from a study of Dr P's Report, the Father had been diagnosed in the past with severe obsessional psychosis. Whilst the relationship between the parents appears to have been a difficult one, a reasonable inference to draw is that his mental health crisis in 2012 contributed to the end of the relationship.
In the period after separation, the Father repeatedly made reports to various authorities about marks and bruises that he noticed on the children’s bodies when they were with him. Allegations were made that the Mother and other people in her household assaulted the Children. The Father alleged that the Mother threatened to kill one or other of the children. The history of these allegations predates Dr P’s report, but continued after the Final Consent Orders.
Matters appear to have culminated in April 2018 when the children allegedly reported to their Father that the Mother had hit [X] on the nose, causing it to become swollen and bruised. The Father reported this alleged incident to the New South Wales Police, and the New South Wales Department of Family and Community Services. The Mother denied the allegation. The Father retained the Children. Proceedings were commenced in this Court. The Father’s application was filed on 3 May 2018. On that same day I made Orders in chambers under s.69ZW of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’) addressed to the Department of Family and Community Services and New South Wales Police, as well as appointing an Independent Children’s Lawyer. The Father’s application was granted a first return date of 30 May 2018. On that date, the Father appeared with his lawyer, the Respondent Mother appeared by telephone, and Mr Williamson appeared as the Independent Children’s Lawyer. I made directions, ordered a Child Inclusive Conference, and set the matter down for an Interim Hearing on 13 July 2018. The contents of the Child Inclusive Conference Memorandum will be dealt with below.
When the matter came before me in Chambers on 12 June 2018 I made Interim Consent Orders that the Children live with their Father and spend time with their Mother. I had encouraged the parties and the Independent Children’s Lawyer, on 30 May 2018, to negotiate the terms of the Mother spending time with the children before the Interim Hearing. The Court was reassured that they had done so, and that these interim arrangements had been put in place, as it was quite clear to the Court that the children would not spend time with their mother in the absence of these Orders.
The Interim Hearing was held on 13 July 2018. Mr Adams, solicitor, appeared for the Father, Mr De Jonge, solicitor, appeared for the Mother, and Mr Williamson appeared as Independent Children’s Lawyer.
The competing proposals
The Father’s proposal was that he have sole parental responsibility, that the children live with him, that he be able to obtain “urgent psychiatric or psychological counselling for both children”, that he be able to enrol them in a school in the Suburb B, and that the children spend no time with their mother unless supervised, pending a psychiatric assessment of her and a determination of no risk to the children.
The Mother’s proposal was that she have sole parental responsibility, that the children live with her, and that the children spend time with the Father on a supervised basis.
The Independent Children’s Lawyer’s proposal was that the children be returned to the Mother’s care, that the Father be restrained from once again removing the children in breach of the existing Orders, and that the Court at least consider a period of no contact with the Father, to enable the children to settle back into the Mother’s care. Apart from a period of suspension of the Father’s contact, the Independent Children’s Lawyer’s proposal was, in effect, to revert to the existing Orders.
The evidence before the Court
In the Father’s case, he relied on:
a)Initiating Application, filed 3 May 2018;
b)Affidavit of Mr Gavalas, filed 12 July 2018;
c)Affidavit of Mr Gavalas, filed 3 May 2018;
d)Notice of Risk filed by Mr Gavalas on 3 May 2018; and
e)Case Outline document, filed 12 July 2018.
In the Mother’s case, she relied on the following documents:
a)Response to Initiating Application, filed 29 June 2018
b)Affidavit of Ms Theodorakis, filed 29 June 2018;
c)Notice of Risk filed by Ms Theodorakis, on 29 June 2018; and
d)Case Outline document, filed 12 July 2018.
The following materials were produced on subpoena:
a)Documents produced by New South Wales Police;
b)Documents produced by Dr A of Psychology;
c)Documents produced by Dr C of Psychology;
d)Documents produced by Dr A; and
e)Documents produced by Catholic Care.
The following materials were tendered by the Applicant Father as evidence:
a)The Child Inclusive Memorandum dated 10 July 2018; and
b)Three photographs.
The applicable law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Child Inclusive Conference Memorandum
A Child Inclusive Conference was held on 10 July 2018, conducted by a very experienced Family Consultant. Under the heading “Child Protection Allegations”, the Family Consultant neatly encapsulates the issues:
Mr Gavalas alleges that the child have been subjected to physical abuse in their mother’s care and says that they have made disclosures of their mother hitting and harming them as recently as last Sunday. He reports that the children have made numerous and on-going disclosures of experiencing physical abuse in the maternal home and that he has made notifications to FACS and Police. Mr Gavalas suggests that the children fear their mother. When questioned about the historical and sexual abuse allegations made in relation to the maternal uncle, Mr Gavalas stated that his concerns lessened when the uncle was no longer living with the mother and children. He reported that there have been two isolated incidents of the children having sexualised behaviour in recent years and he is concerned that the children may have been able to view inappropriate “rude” videos on the uncle’s laptop, based on the children’s reported comments. Ms Theodorakis denies that the children are at risk in her care. She acknowledges that she may have yelled and raised her voice at the children on occasion but stated that her preferred discipline strategy is to remove items from the children such as toys or ipads. She said that she has rarely “grabbed” one of the children or smacked them on the bottom if they were fighting amongst themselves. She said that she has also covered the boys’ mouths on occasion when they have been saying derogatory things. She denies having punched, kicked or otherwise physically abused the children. She said that there was one occasion her brother, the maternal uncle, smacked [X] on the bottom when he was swearing and “out of control” last year. Ms Theodorakis believes that Mr Gavalas has negatively influenced the children to fabricate allegations about her. She reports that FACS have not been involved with her or had any intervention with the family.
The Court observes that the Father’s report of his child protection allegations contains a historical matter that predates the 2015 Consent Orders, that is the reference to rude videos. The Mother’s denials of risk nonetheless contain an acknowledgement that she “may have yelled and raised her voice at the Children on occasion”.
The Memorandum goes on to record the Mother’s concerns that the Father has a longstanding pattern of undermining her relationship with the children, and manipulating them to reject her. The Father insists that he tries to encourage the boys’ relationship with their Mother, and contends that the children’s resistance is based on their own experiences of the Mother.
It is common ground that [Y] suffers from Autism Spectrum Disorder but is high functioning. Both parents acknowledge that [X] has anxiety. The Mother was recorded as saying that; “[X] is so estranged from her and so aligned with his Father that she believes he may harm her, saying, ‘He hates me so much, if his Father told him to kill me I think he would.’” Thus, even the Mother acknowledges the difficulty in her relationship with [X].
The Family Consultant described the co-parenting relationship as “extremely poor”. Indeed, the Court observes, this is a measured description of the parental relationship.
The Family Consultant observed that at the commencement of the day, whilst [Y] was noted to be sitting with his mother, [X] was noted to be visibly resistant to contact with his mother, indeed refusing to wait with her in the waiting area and opting to stay with administrative staff while his father was interviewed. [X] even recoiled from his mother’s attempts to say farewell. The Family Consultant’s observation of the children is important and will be reproduced in full:
The children appeared nervous at the start of the day and [X] seemed eager to convey to the writer his strong desire to “stay with Dad”. [X] appeared on the verge of tears and seemed to repeat certain information in his apparent nervousness, for example seeking repeated clarification that the focus of the appointment was to work out “the days” and see how “the days are going”. Early in the joint meeting with the children, unprompted, [X] spoke of his mother being physically aggressive towards him, hitting, slapping and elbowing him and said “I hate my Mum”. [Y] appeared less vocal that his younger brother and more measured in his comments, saying simply “I think I prefer Dad”.
Both children, in their individual interviews, gave the impression that they were keen to convey certain information to the writer and, in some ways, were impatient with any rapport building or neutral conversation topics, with [Y] interjecting at one point, words to the effect of ‘are we going to start getting into it? The questions?”. The children commented that they had met with police recently and had also spoken with other counsellors in the past.
[X] presented as a vulnerable and troubled little boy on the day of interviews. At the conclusion of his interview and the end of the assessment he appeared visibly more relaxed and less burdened.
[X]’s discussions about his father were overwhelmingly positive and he appears to have a very strong affinity and alignment with Mr Gavalas, describing his father as “already perfect”. He contrasted his relationship with father to the one he shares with his mother and was unable to identify any positive or redeeming qualities about his mother. [X] spoke of his mother being “mean” and said that, last Sunday, she pulled and slapped his leg and said that there were other occasions that she had elbowed his chest, smacked his nose or kicked him, but did not give any detail of these events.
[X] spoke of his strong desire to remain close to his father, stating that he prefers time with his father over other pursuits such as a playdates. He appeared anxious about separation from Mr Gavalas on the day, for example asking to come into Mr Gavalas’ interview and seeking repeated reassurance from the writer about whether he could remain in his father’s care. He considers that his rejection of his mother is “karma” given that his mother previously took him away from his father.
[X] appears aware of his parent’s preferred arrangements and said that his father tells him to love his mother.
Both boys stated that, were the court to order they return to live with their mother, they would run away with their father to a forest and it seems that they may have spoken with their father about this. Both boys spoke of [X] currently running away during changeover and this being a stressful time. Ms Theodorakis said that she has been concerned for [X]’s welfare on occasion as he has tried to get out of her car and run on to a busy freeway.
[Y] voiced a desire to remain living with his father and remain at his current new school. Unlike [X], he was able to express some positive feelings for his mother, stating that it is “good to see my Mum from time to time”. He spoke of his mother becoming easily annoyed with the boys and swearing and smacking them in the past.
[Y] also sought reassurance from the writer in the interview and seemed open to adult influence, asking the writer’s preferred parenting arrangement for the boys, questioning “is this what we should talk about?” and asking what [X] had told the writer. [Y] seemed quite preoccupied with the parenting dispute and to become stressed if the conversation moved outside discussion about this.
Minimal feedback was given to the parents on the day. The children’s voiced views appeared consistent with the expectations of their parents in that Ms Theodorakis spoke of [X] making negative comments to, and about, her during their time together.
The Family Consultant concluded by recommending the Court to undertake a careful balancing of risk. She opined:
It seems clear, given the intensity of the Children’s reactions and breakdown in relationships, any substantially shared care arrangement would be unworkable at this time. The Children appear unable to currently have a positive relationship with each parent and may be suffering intense loyalty conflicts.
The Family Consultant noted that if the Father’s account is accurate, and the children have been physically abused by their mother and if [X] is realistically estranged from his mother, then the priority is safety and security for the boys and therapeutic support, possibly involving the entire family to address relationship difficulties. However, if the Mother’s account is accurate, and the children are negatively influenced by their father and becoming alienated from her, then it is difficult to see how they would be able to maintain any healthy relationship with her while they remain in their father’s care.
The Family Consultant recommended that an updated Report by Dr P be obtained as a matter of urgency. She stated:
In the interim, there are some concerns about how the Children may react to a decision to return to their mother’s care at this time, given [X] refused to even remain with her in the waiting area for a short period. The risk of [X] placing himself at risk or acting defiantly is considered very high. Should the Court decide to return the children to their mother, Ms Theodorakis would likely need intensive support to manage the boys’ reactions. It is also noted that such a change would require the boys changing schools to return to their previous school.
The Court, of course, has had the benefit of reviewing a considerably larger body of information and evidence than was available to the Family Consultant. Notwithstanding this, the Court finds her assessment accurate. As will be seen, the Court will find that the evidence, on balance, suggests that the Father has either successfully alienated the Children, or one of them, from their mother, or is in the course of so doing. On the material before the Court, there is no basis for the break in the relationship between the Mother and the children. It is the Father’s agency that has brought this about. Nonetheless, the exquisite dilemma for the Court is to strive for the achievable, rather than the ideal. Returning the children to the Mother’s care is a proposal which has many inherent risks. Can these risks be adequately managed, or is the risk actually less in the Father’s care?
Dr P's Report
Whilst lengthy extracts of Dr P's Report are reproduced in the second schedule to these Reasons, it is useful to point to some specific paragraphs which are relevant to the Court’s present decision.
At paragraph 134, Dr P warns about the risk to the children if the Father is amplifying or fabricating his reports about the children:
If the father has deliberately amplified or fabricated his reports of the children’s negative narrative about the maternal family, their imploring narrative about missing the paternal family, or their narrative about sexual abuse by the maternal uncle Mr J, then this would amount to emotional abuse of the children.
At paragraph 179, Dr P considers the impact of the Father’s prominent obsessional personality traits. The significance of this, the Court believes, is the Father’s inability to consider any alternative hypotheses to the Mother having abused the children:
The father’s obsessionality can lead him to swing between extremes of perspective or attitude, for example between acceptance and rejection of a form of intervention with the children, or between hope and despair about their project. He can get locked onto a certain way of thinking, and find it difficult to consider other perspectives. In this state, he can project his own views onto loved others such as the mother (in the past) and the children, and assume their concurrence with his current perspective, rather than stop to consider their separate experience. In his intensity, he becomes coercive, and quickly exasperated and agitated if frustrated in his endeavours.
The themes of concern continue at paragraph 196:
In such a setting, I am concerned about the father’s tendency to project his own perspectives and emotions onto the children, and thus create in them a need to mirror back to him those perspectives and emotions.
The potential implications of this are explored at paragraphs 199-200:
In my experience, an expectation to mirror back to the father positive regard and admiration is not harmful when it is intermittent, and can in fact be a positive aspect of busy, idealised “special” time between a parent and child. But, when that expectation is present for more than 50% of the time and become ordinary it becomes a burden, and can contribute to anxiety and the development of insecure patterns of relating that can then disrupt the children’s development of adult intimate relationships.
I am concerned that the father’s emotional reactivity and intense fearful and protective responses to perceived environmental threat [related to obsessionality] can disrupt the children’s own emotional state and sense of security. Ms C noticed that [Y] became distressed in the context of paternal reactivity to painting occurring in the school, and subsequently developed some desire not to attend school on that day of the week “ever”. My concern is not that a parent may be cautious about use of chemicals in the school, but about the transmission of the father’s associated emotional and interpersonal intensity to the child.
At paragraph 203, Dr P refers to a consequence of the Father’s obsession:
I am concerned that the father’s obsessionality can lead him to fluctuate between intense over-engagement with an issue or external agency (such as a therapist) when preoccupied with that concern, and disengagement when distracted by an alternative pressing concern. In my view, this process occurred during 2011/12, and there has been some evidence of that pattern in the father’s engagement with Ms C.
Dr P noted in relation to the Mother at paragraphs 236-238:
Overall, my impression was that the mother is empathically attuned to the boys, and is thoughtfully and kindly raising them.
I found the mother’s impressions of the children’s state of mind about each parent and their current circumstances to be much more balanced, flexible, appropriately uncertain and arising from thoughtful observation of the children, than were those of the father. Her impressions were much closer to what the children expressed to me when seen alone, and to the impressions that I gained from my observations, and that were expressed by others such as Ms C and the school teacher.
The mother’s resultant attitudes and behaviour towards the children was thus less constructed, expectant and coercive than was the father’s behaviour towards the children. It was my impression that the mother clearly identified the children each as individuals separate from her, and gave each the space to form his own perspectives and to have his own feelings.
At paragraph 314, Dr P raises concerns about the Father’s capacity to support the Children’s relationship with their Mother:
Whilst the father supports the mother-child relationship in principal, I am concerned that the father lacks capacity to support the children’s ongoing relationship with the mother, in the following ways:
The father maintains an idealising/ devaluing perspective that the children are pining and praying and pleading for return to the joy of his care, and experiencing distress, fear and abuse in the mother’s care. He induces responses from the boys that reinforce this perspective.
The father has had a longstanding set against the maternal grandparents and maternal extended family. In the interview with me and with JIRT he made globally dismissing and rejecting reference to “that house”, being the maternal grandparents’ home.
The father’s obsessionality is such that whilst he supports the mother-child relationship in principal, he will seek to intrude on and control that space. For example, he told me that he that the mother “needs to move out of that house”, and he would return them to their old school. When the father’s mind is stuck on an issue, this issue will fill his mind and agitate him to action, and he does not take perspective or show respect for other views.
The father’s paranoid stance is such that I feel that he is likely to attribute causality for any problems in the boys to deficiencies in the maternal care environment, as in the past he has sought out causality in diet or environmental toxins. In some ways, the current allegations against the maternal uncle are an example of the same, and I am concerned that there will be more such attributions to follow.
Dr P's Report, of course, was based on observation at the time of interview which was 26 May 2014, over four years ago. His observations and professional opinion continue to be of relevance to this Court and, indeed, the weight that might be attributed to them remains significant especially if there is evidence to suggest that parental behaviour has continued in the fashion that he described, but after the date of the Report.
Documents produced by Dr A
The Father caused to be subpoenaed the records of the Doctor who he took the Children to whilst they spent time with him. The records show that the Father took [X] in to see the Doctor on 19 April 2014, 7 March 2015, 8 March 2015, 3 December 2016, 12 December 2017 and 20 April 2018. The Court notes that the Father took [X] to the medical practice both on Saturday, 7 March 2015 and Sunday, 8 March 2015, and was seen by two doctors, though for not necessarily the same reasons. On the Saturday the record refers to the Father’s concerns about [X]’s weight, ear pain and coughing. The doctor noted that [X] had healing impetigo on the nose and forehead. The record suggests that the doctor reassured the Father that [X]’s height and weight corresponded. The record on 7 March indicates that the Mother had rung earlier “as she was worried why he is bringing them to us – [X] has had some impetigo which is being treated”.
On the Sunday the record notes: “seen with Father, has sup skin infection spots three-four in number in total, diff body parts, since 2-3 weeks, uses local cream.” On examination the Doctor noted “skin infection spots, getting dry”. He diagnosed a skin infection, prescribed Augmentin.
It is unclear why the Father took [X] to two doctors in two successive days especially when the reason for the second visit seems to be skin infection spots which had been present for two to three weeks.
On Saturday, 31 December 2016 the Father attends the surgery with [X] in relation to a rash on both elbows. The significance of this visit is that it occurs after the Consent Orders of 24 August 2015 in which sole parental responsibility for health issues was given to the Mother. Whatever rash [X] had does not seem to have been an urgent issue so one wonders what was the purpose of the visit given that the Father had no authority to do so?
On 12 December 2017 there is another visit, this time relating to a wart and sunburn for [X]. The Doctor suggested moisturiser for the sunburn and paracetamol for any consequent pain. The warts were shaved. Again, the significance of this visit is the Father’s lack of authority to take [X] to the Doctor, and the seeming lack of urgency or need for the visit.
Perhaps the most significant visit for present purposes occurred on Friday, 20 April 2018. The Father took [X] to the Doctor, but in the company of [Y]. The record narrates:
After (sport) yesterday … [X] told dad that his mum slapped him on nose, then it bled for a few minutes. Yesterday, prior to (sport). One day she put her finger in his mouth, as she was angry. Stated mom sometimes hit him. Sometimes his Grandfather and his uncle sometimes slap him or hit him on bottom.
On examination the Doctor found no nasal septal haematoma, noted “possible subtle contusion on nose, proximally, but minimal tenderness”. In terms of management, the Doctor recommended “wait and see approach with nose, consider X-ray if any concern about a fracture” (which he noted as being “clinically not likely”) and recommended to “express disagreement with any physical punishment, to prevent future harm.”
Again, the Father had no authority to take [X] to the Doctor. Not only did he take [X], but he brought [Y] with him. An implicit, if not explicit, concern in the Mother’s case was that the Father’s visits to the Doctor was for the purpose of evidence gathering. In terms of the incident at (sport), it is noticeable that the allegation is made that [X]’s nose “bled for a few minutes” after his “Mum [had] slapped him on the nose”.
Documents produced by New South Wales Police
There is a COPS entry dated 22 April 2018 (the Father having taken [X] to the Doctor on 20 April). This entry bears reproduction:
Their father Mr GAVALAS has the children five nights a fortnight, on a Tuesday each week and every second Weekend. The accused Ms THEODORAKIS has the children the remainder of the time. School holidays are shared equally between the pair. On the morning of Thursday the 19th April 2018, the children were at the accused’s residence located at ………. They were in the living room, getting dressed. The victim has put his shirt on, but did not put his arms through the sleeves. The victim was giggling and being ‘silly’. The witness was only a short distance away. At this time, the accused hit the victim with an open hand on the nose. This caused immediate pain to the victims nose, and he had difficulty breathing through his nose. The victim began to cry. The accused made attempts to blame to witness for the assault, to which both the victim and the witness defended. Eventually the victim calmed, and they continued in their day. About 5:5pm, the accused dropped the victim and witness to (sport) training located at Park. It had been arranged previously that the childrens father, Mr Gavalas would pick up the children from this location, with whom they would spend the remained of the school holidays. Upon arrival, the victim began his training, while the witness and Mr Gavalas walked around the oval. The accused left the location. When (sport) training finished, the victim, witness and Mr Gavalas got into their vehicle. At this time, the victim said “Mummy hit me on the nose”. The victim complained of a sore nose, and difficulty breathing. Mr Gavalas questioned the victim further, and the witness confirmed the incident. Mr Gavalas stopped at his apartment located in Suburb C, and examined the victims nose. He observed swelling and a purples/red bruise on the bridge of his nose. The victim complained of tenderness when touched. They continued back to their residence at ………….. On the morning of Friday the 20th April 2018, the victim continued to complain of pain. Mr Gavalas booked a doctors appointment for the following day (only availability) and sough advise from his solicitor. Mr Gavalas took a number of photographs of the injuries. Mr Gavalas then contacted Police in relation to the matter.
The Mother was interviewed by the Police on 24 April 2018, and again this COPS entry bears reproduction:
about 1900hrs Tuesday 24 April 2018, police made contact with the PR to clarify a number of issues regarding the allegations against the POI. Police were able to ascertain the victim had the first lot of photographs of his injuries taken on Saturday 21 April around 1530hrs by the PR, which is 3 days after the alleged incident. Police were also able to ascertain the details of the (sport) team the child plays in as well as the name and contact details of the coach. A short time later police contacted the coach …. And had a lengthy conversation with him regarding the health and demeanour of the victim when he was dropped off to (sport) training on the Thursday afternoon. Police arranged to attend the home of the coach to obtain a statement from him with regard to the victim and his lack of visible injuries and the fact the victim showed no signs of breathing difficulty on either day. About 2030hrs police attended the coaches address and obtained a statement. About 2130hrs the POI attended police station at the request of the investigating police. Police spoke with her at length and about the allegation and explained their position. The POI was upset and emotional, stating to police “you need to stop him doing this stuff. He’s a controlling mastermind. This is all lies. Mr older boy has Asperger’s and is easily led, and my youngest (the victim) just wants to please his father and he too is also being manipulated by their father”. The POI went on to elaborate on passed incidents and showed police documents from the family law court that directs the PR to attend regular appointments with a psychiatrist for his bi-polar disorder and resulting psychosis. The POI went on to tell police her and her sons had a wonderful day at the movies on Thursday and there were no incidents at all that day. To the best of her recollection, she believes the boys were very well behaved. Furthermore the POI showed police SMS correspondence between her and the PR that showed their conversation was civil, and made no mention of the alleged nose bruising. There were also further messages from the following day/s that made no mention of the injuries whatsoever either. As the result of investigations made by police with the victims (sport) coach as well as those made with the POI police have come to the conclusion that injury to the victim was not caused by the POI, and any allegations of assault made by the victim or witness are as a direct result of having been coached into what to say by the PR. This coaching theory also fits with the MO reported previously by the PR and also subsequently rejected by detectives. It appears the PR motive for making this vexatious complain is in a bid to have family law court orders he is unhappy with changed to some more to his liking, and the only way the family law court will re-visit the orders is with evidence of gross abuse or similar. As a further result of investigations it is now clear there were no grounds for the granting of an ADVO and as such the ADVO should be removed at the earliest possible opportunity, being its next mention date of Thursday 26 April 2018. In any case, the ADVO has been served on the POI as at the time of writing, it has been granted and nonetheless required serving. Copies of the statements of coach …. And the POI have been uploaded to the event, and a waring placed on the PR regarding making false complaints.
Amongst the many issues of interest that arise from these records is the absence of any reference whatsoever to [X] having a bleeding nose, which was recorded by the Doctor on 20 April 2018. Moreover, [X]’s (sports) coach observed no visible injury and no signs of breathing difficulty.
There is an interesting COPS entry going back to the proceedings in August, 22 August 2017. This is reproduced:
The PR and PN were married for 10 years, they divorced in November 2015 and have the above children as a result of their relationship. Consent Orders in relation to the children were agreed to in August or September 2015 with the PR having custody of the children 5 nights in a fortnight and the remainder with the PN. About 3.00pm on Tuesday the 22nd o August 2017 the PR attended Police Station with the children to report a number of incidents relating to the PN.. Detectives interviewed the children with the following disclosed: YP 2 did not disclose anything of relevance. YP1 disclosed that he had a knife held to his throat and is mother took it off him but did not threaten him. YP2 disclosed that his mum has hit him before when he has been cheeky or naughty, which police deem to be lawful chastisement. YP2 asked the detective if there was anything that could be done with Family Law Court so that he could spend more time with his father.
The Court notes that both children were taken to the Police, were interviewed by detectives, but one of them said nothing. One of the children, and the Court knows from other evidence that it was [X], disclosed that he had a knife held to his throat, and his Mother took it off him. Thus, what [X] told the police is recorded as [X] holding a knife to his throat, not his mother. The Father refers to this incident in his Affidavit of 2 May 2018 at 5(m). He says that after he “collected the Children from school and got home [X] put a knife against his neck threatening to kill himself saying that he hates himself and wanted to kill himself because this is what his Mother does when he misbehaves.” The allegation is clear – that [X] was acting out what his mother does to him. But that is not what [X] told the Police on 22 August 2017. This, apparently, did not deter his father from making the allegation in his Affidavit of 2 May 2018.
Documents produced by CatholicCare
These records appear to constitute the records of the School Counsellor who was seeing the children after the Father had retained them contrary to the Orders. Again, it should be noted, that it is at least arguable that he had no authority to take the children to the School Counsellor given that counselling would be regarded as a mental health issue in respect of which he had no parental responsibility. The Counsellor sees both children, but it is not entirely clear from the records the circumstances in which the Father is involved. What is of interest about these records, and by way of summary only, is the difference in the recorded experiences of [X] and [Y] about spending time with their Mother – [Y] is far less resistant. Moreover, there is a dissonance between what the Father records as [Y]’s experience with his Mother, and what [Y] himself records. The Father’s account, unsurprisingly, is a much more pessimistic perspective. There is an interesting comment recorded by [Y] where he says: “Looking forward to seeing Mum, I am not scared to see Mum because the Judge told Mum she cannot smack us.”
Documents produced by Dr A – Psychology
On 24 August 2017 the Father took [Y] to see a Counsellor, Dr A, a psychologist from Psychology. As will be seen below, he took [X] to see Dr C, also from Psychology. What is clear from the evidence is that he did not consult the Mother, and he did not have the parental responsibility to do what he did. Indeed, by February 2018 the Mother became aware of the visits, and once the Psychologists became aware of this, they ceased their involvement. From this material, and indeed from the totality of the evidence before the Court, it is not possible to discern how the Father may have felt that he had authority to put the children in psychological care. The inference is open once again that he was seeking to enlist assistance in his case, and was merely gathering evidence.
There is an undated typewritten note on the file. It commences with the words: “My main reasons for being here are for the wellbeing and safety of my two boys [Y] and [X].” Thus, a reasonable inference is that this was a document that was prepared to provide background to the Counsellor, a list of concerns stated. The concerns are, unsurprisingly, presented subjectively, that is, from the Father’s perspective only. The document manifests the Father’s concerns about the children’s safety whilst in the care of the Mother, and the maternal family. His criticism of the Mother, and the maternal family, is both implicit and explicit in the document. There is no reference to previous proceedings, or to the existing Orders. He raises a number of historical concerns. He introduces alleged events that have not, hitherto, featured in other evidence (other than that of the Father’s), that is, that [X] wrapped a cord around his neck. Also, the Father discloses that: “[X] displays extreme behaviour towards me and his brother, it is almost impossible to get through to him to get him to calm down…”
There is a handwritten note which bears the date 17 October 2017. These notes are extensive, and the focus will only be on comments that are relevant in the present context. [Y] is recorded to have said: “She used to hit me. She hits with her hands.” The past tense is noticeable. The Psychologist then says words to the effect: “Sometimes people do things to us we don't really like – has anyone done that to you?” The noted response is: “Oh, my uncle, he embarrasses me.” This is hardly consistent, with respect to the Father, with the concerns he expresses about the Maternal Uncle in his letter that includes, for example, sexual disclosures, and alienation.
On 17 October 2017 the handwritten note suggests that [Y] presented as confused, and not finishing many of his sentences. Indeed, the note states: “Just seemed lost … spoke of lots of worries however, lots of the time contradicted himself. Lots of ‘oh I forgot’, ‘I can’t draw well’ … ‘did I say…’, ‘oh I forgot’.” A reasonable inference is that the initial presentation to the Psychologist was not necessarily an easy, or positive experience for [Y]. His confusion, emotional burden, and inconsistency, hardly lends weight to what he disclosed in the records, and which the Father relies on as further evidence of his case against the Mother. In the note of the feedback that was given by telephone to the Father, the psychologist records “that the boys are unusual in that [Y] was very anxious and incoherent at times”. The Father is recorded as being “upset and teary when talking about his concerns for his boys”. There is a note, it would seem, of what the Father said, as part of the handwritten record of the discussion with him on 17 October 2017. It says: “I want to breach the order to keep the kids safe.” Dr A records:
the. clear breaching the orders not wise b/c although Children making statements about fear and violence uncertain DoCS will act on this at this time. We need more time to get to know the boys and understand their experiences although I believe the boys are at risk of harm both physically and emotionally. I do not believe that there is eminent imminent risk. The boys are safe.
It is clear that the Father was contemplating breaching the Orders, as early as 17 October 2017. Indeed, by taking the Children to the Psychologist, he had already done so.
In the entry of 24 October 2017, tabbed on behalf of the Applicant Father the handwritten note states as follows:
With mum – she is crazy, she gets really angry. One day I said I didn’t want to go swimming but she said I have to. Mum doesn’t let me watch horror movies. My mum wouldn’t let me ask for things like almond milk. Mum usually scares me. I’m afraid she will get my Dad in trouble for letting me watch horror movies.
This gives an insight into [Y]’s world. It is clear that the parenting that he experiences in his Mother’s household is different to that of his Father’s. Whilst the Father no doubt sought to direct the Court’s attention to [Y]’s statement that his Mother is “crazy” and “gets really angry”, when the context is examined, those comments are rather innocuous. A real concern, however, is the record of [Y]’s belief that his mother will get his mother in trouble. One must be concerned about the source of this anxiety, and whether it is the Father himself creating this illusion.
On 31 October 2017 the handwritten record notes that [Y] is very engaged but: “did say he didn’t tell his mum he was coming here as she would be angry”. Thus, [Y] is clearly thrown into the no-man’s-land of his parents’ conflict, and the context indicates that it was his Father who placed him there. Thus, [Y] is attending psychological sessions contrary to Court Orders. His Father must have communicated to him that he should not be going. Moreover, his Father must have told [Y] that he was to keep secrets, that is, not tell his mother about seeing the Psychologist. Did the Father have any insight into the emotional predicament that he was creating for his son? No such insight is evident in the material before the Court.
The final note of interest is dated 2 February 2018. This note makes it apparent that as at this date, Dr A was clearly aware of the fact that the Mother did not consent to [Y] participating in the session, and that she had sole parental responsibility in this regard. Dr A records what she describes as the “long history of problems and concerns” that the Father has about the parenting of the children by the Mother. This note provides an interesting insight into the Father’s perspective on the past proceedings. He seems to discount Dr P's Report, because the case was never heard at Court. The Father said that his father died, he ran out of money, he got Legal Aid, and they did not have enough time to read all the documentation. Thus, the Independent Children’s Lawyer made the decision to keep the Consent Orders as final, and the Judge agreed. Even if there was a measure of accuracy in the Father’s recount of the past events, it is certainly a simplification of what took place. He was represented by both Solicitor and Counsel. Turning to Dr P's Report, he told Dr A that he was “unable to remember Dr P’s recommendation” but, somehow, remembered that he could not release the Report to Dr A. He did, however, provide the Report by Dr T, his Psychiatrist. Once again, a reasonable inference to draw is that the Father is a rather selective historian.
Notwithstanding the Court’s observations above, Dr A’s notes do record rather consistently [Y]’s accounts of the Mother’s anger. What is not clear, even after a close study of these records, is whether [Y] was referring to historical or ongoing issues with his mother’s anger. The agency of the Father in [Y]’s recollection of these issues is, of course, unknown.
The notes produced by Dr C of Psychology
As noted above, in the context of Dr A, it is clear that Dr C was seeing the Children without the Mother’s knowledge or consent. He was seeing [X]. On 7 November 2017 Dr C appears to record in writing events around the Mother’s anger. The note states:
When mum gets angry she slaps the kids and hits me.” Dr C asked: “When was the last time your Mother hit you?” The recorded response is: “Maybe two or three years ago. Now she just swear. Dad never hits me.
One week later, on 14 November 2017, [X] has reported that his mother hit him “but not hard”. When Dr C asked where, [X] explained:
On my arms, legs, thighs and feet. Once she chased me with a knife. She was tricking me. She wasn’t really going to hurt me or kill me. And it was a butterknife.
Once again, it is hard to differentiate between what is current, and what is historical. [X] seemed to be able to identify that his mother was not serious on occasions. When Dr C asked about his feeling he is recorded as saying: “She took dad away from us. And my Mother swears.” The common narrative between the boys becomes apparent. This is a narrative that seems rehearsed. One must ask: how could children of this developmental capacity form the view that their mother had taken their father away when, objectively, the Father was enjoying a substantial and significant time arrangement with his children in which he was spending five out of fourteen nights with them?
The concluding comment of the interview on 14 November 2017 is recorded as follows:
Sometimes Mothers and Fathers tell us to say things we don't want to, to adults. Does that happen to you?
The response is as follows:
Yes, dad tells me to say hello to his friend.
The tab for this entry was placed there on behalf of the Applicant Father. The Court is not quite sure what was meant to be conveyed. If the assertion in the Father’s case is that this record demonstrates that the Father was not coaching the children (an express assertion made against him in the Mother’s case), then it hardly does so. Indeed, [X]’s response to Dr C’s proposition is “Yes.” The inference is that his Father does tell him to say things he does not want to, to adults. The example he gave was innocuous. It does not rule out an inference against the Father that there are other things he tells [X] to say, that he doesn’t want to.
In the note of 21 November 2017 [X] tells Dr C that his Mother “has not hit him this week, only yelled, which is better than hitting”. It is unclear from the record whether this was a direct response to the question. Whether it was, or not, creates a double bind. If Dr C did ask the question, this is problematic. The disclosure was not spontaneous, it was led. But if Dr C did not ask the question, the spontaneous disclosure in the context of a discussion of the previous week’s activities is equally problematic. Why mention it at all, if no question was asked about hitting? One hypothesis is that [X] had been coached to say this. Another hypothesis is that the sessions with Dr C created in [X] an expectation that he had to say something about his mother, whether she hits or swears. There is, of course, the hypothesis that this was a spontaneous disclosure, but is this the most likely hypothesis, having regard to the totality of the evidence? This Court’s view is that, based on the cumulative evidence so far, a reasonable inference is that this was not a spontaneous disclosure and, to give Dr C the professional respect which he is due, it was not an answer to a specific question that he asked. Any hypothesis involving the agency of the Father is a plausible one.
When the notes of [X]’s sessions with Dr C, are contrasted with the notes of Dr A’s sessions with [Y], it is interesting to note that, overall, [X] seems far less strident in his comments about his Mother, than [Y] does. Indeed, when Dr C’s notes in relation to [X] are compared to what [X] told the Family Consultant, Dr C’s notes are quite benign.
Documents produced by the Department of Family and Community Services
The Departmental file is quite a substantial one, which is unsurprising given the history of litigation between the parents and the allegation the Father makes against the Mother. The history that is recorded makes it difficult to differentiate between alleged events before the Final Consent Orders, and afterwards. A theme of the evidence examined so far in these Reasons for Judgment is the difficulty to differentiate between historical and present allegations.
One of the difficulties with these Departmental records is that the person making the notification, that is, often the mandatory reporter, is not identified. Thus, a record created on 15 November 2017 seems to have been made by a mandatory reporter who is quite intimately aware of the allegations that the children are making. However, the record makes it clear that it is not the Psychologist who the boys are seeing. Indeed, given some of the serious disclosures made in this contact record, one would have thought that if the boys had made the same disclosure to their Psychologist, this would have been carefully recorded. The reporter is a woman. It is very hard to work out what, if any, weight should be given to a record such as this one.
There is a helpline e-report for 22 August 2017 which records the Father attending Police Station with the children to report a number of incidents. Thus, for example, [Y] disclosed that his Mother has hit him before when he has been cheeky or naughty. [X] disclosed that he had a knife to his throat and his Mother took it off him but did not threaten him. [X] enquired if there was anything that could be done so that he could spend more time with the Father. The Police suspect that the Children were coached. The Father was notified that a record would be made of the allegations;
At this stage I do not have any concerns for the Children’s welfare due to the fact they did not disclose any issues when spoken to by detectives. The Children did not appear affected by any incident at the time of presentation. They were more than happy to converse with general duties Police and to be interviewed by a detective. The Children did not speak badly of their Mother or Father and did not appear to be afraid of either.
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Father’s mental state and parenting capacity
166. In my view, the father has experienced ongoing obsessional symptoms, of fluctuating intensity, which are in part characterological, that is part of an obsessional temperament or personality style, and at times have also extended to meet criteria for an obsessive compulsive disorder.
167. I agree with Dr T that the father likely had a brief reactive psychosis in late 2012, which Dr T referred to as an “obsessional psychosis”. Psychotic symptoms included delusional beliefs, some of which were amplifications of his longstanding fears regarding environmental dangers, for example a fear of his business rivals contaminating his house that led him to hose the house for hours and to bring in bags of “contaminated” contents from the home to his appointment with Dr T. Some of his delusional beliefs were more bizarre, for example that his shop was being disrupted by spiritual forces. The father had developed an acute fear of running over pedestrians whilst driving and of raping woman that he might see in the street. He was concerned about plots against him, at times involving his wife. He showed relatively severe hypochondriasis. He was experiencing auditory hallucinations, hearing the voice of his business rival.
168. The above symptoms settled quickly (within a month) once they had been identified as such, and treatment commenced.
169. Dr T described in his reports and to me in person that the father had not experienced any obsessionality prior to or since his psychotic illness. Dr T recalled the mother backing up this history, early on, prior to parental separation.
170. The father initially gave a similar history to me, but conceded to some past obsessional symptoms when challenged with some of the specifics outlined below.
171. The mother told me that the father, the paternal grandmother and paternal aunts had told her that the father had a longstanding history of OCD, and that there is a family history too, with one of the paternal aunts Ms A having some OCD.
172. The mother said, “it was worse once the babies arrived… his obsessive problems got worse… I was in hospital, when we had [Y]… his sister Ms D… he made her wear a white bedsheet, because of ‘germs’… he made everyone wash their hands”. Later, “he wouldn’t let me take the baby out… [Y] wasn’t allowed to play outside… [the father worried about] smoke… he couldn’t play near barbeque areas”.
173. The mother reported that the father would wish to restrict the children’s diet, would disallow the use of the microwave oven and mobile telephones near the ear. On windy days, he would check the wind direction on the internet, and if it was blowing the wrong way, would want to cover the children’s faces. She reported that the father would become emotionally intense and intrusive about these matters, for example questioning the mother and going through the car to check for evidence of the children having eaten prohibited foods.
174. I think it likely that the mother’s account of the father showing longstanding obsessional symptoms is accurate, including her account that these symptoms impacted the father’s relationship with the mother and the children, and the children’s and the family’s capacity to freely engage with the world. This perspective is based on the following:
174.1. The police documents include an entry for 23rd November 2001, when the father received a parcel from his girlfriend in (country omitted), and noted a small amount of white powder, leading to a HAZMAT response. Whilst I note that this event did occur in the midst of the anthrax scare, in my view the father going to the extent of calling in police when there was a clear and non-sinister reason for him to receive a parcel from (country omitted) showed a heightened sensitivity to environmental risk.
174.2. Paediatrician Dr K’s letter of June 2011 is consistent with the current maternal narrative, and I do not see a clear motivation for the mother to fabricate such a narrative at that time. The letter comments that [Y]’s father has OCD, that out of the home, the father would hold [Y] close for fear of him getting hurt. The mother reported at that time that [Y]’s “main anxiety symptoms occur when with his father”. She described separation anxiety from the father, for example that [Y] would want her to pay for petrol rather than the father to go to do so, and that [Y] would get upset if the father had a shower, or left for work.
174.3. The documents from the Child Care Centre state on the child’s first day in March 2012 “[X] starts today… dad is very overprotective and nervous. He is not allowed to eat anything that is not organic”. It is unclear from the notes whether this is (as I suspect) the mother warning up the staff about the father, or the staff’s impression of the father. Subsequently, the father rang in March 2012 to ensure that the child not play outside because there was construction work going on. Then, in September 2012, the father rang wanting to know why non-organic sunscreen had been applied. Later, he rang back to apologise for how he had spoken.
174.4. When the parents saw psychologist Mr N in September 2012, notes “Dad OCD very anxious”, and “Father is obsessive; very protective of the kid… dad is an OCD sufferer…’I am a clean freak’… ‘I worry about the kids +++’, ‘it runs in my family even worst’… getting help for OCD…homeopathic”.
174.5. The father did concede at interview with me that he wrote the note dated 3rd April 2013 that is included in the mother’s letter to the father’s lawyer dated 19th April 2013, stating “your leaving me has cured me of OCD… I don’t care any more about organic foods… [not] worried about the kids getting germs, asbestos, or you taking the kids to their grandparents to sleep”. He told me though that he had written this “purely to reconcile”, not because he accepted these statements.
175. The father saw a therapist in at age 26/27 when he was off work after 2 car accidents. He saw this therapist about 10 times. “It did work… [to make me] more at ease… to get back into a car”.
176. The father struggled with stress associated with troubles at work, from 2011. The father recounted the details of these events with pressure of speech and intensity of emotion. He said, “we were getting harassed… they came and took our price tags… then they stopped supplying us… they severed supply”, and “the (business omitted) situation… I thought I’d go to jail for selling illegal product”.
177. The father does not drink alcohol. He will maybe have “a few sips” of alcohol at a wedding. The father has not used illicit drugs. The father said, “I always watched what I ate… [I was] training from 16, into nutrition, and supplements”.
178. In my view, the father shows some personality dysfunction, with prominent obsessional personality traits. The father has compensatory personality strengths, and I think it unlikely that the father has a personality disorder.
179. The father’s obsessionality can lead him to swing between extremes of perspective or attitude, for example between acceptance and rejection of a form of intervention with the children, or between hope and despair about their project. He can get locked onto a certain way of thinking, and find it difficult to consider other perspectives. In this state, he can project his own views onto loved others such as the mother (in the past) and the children, and assume their concurrence with his current perspective, rather than stop to consider their separate experience. In his intensity, he becomes coercive, and quickly exasperated and agitated if frustrated in his endeavours.
180. The father’s obsessionality can also lead him to strive for excellence, to be innovative and challenging to the status quo, and to drive through an idea to completion, as may have occurred with his (business omitted).
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187. The father has shown an intense attitude of commitment to the responsibilities of parenthood. He is passionately concerned for his children, and protective of them. Even during his period of business problems and personal mental health problems in 2011/12, he was visiting or on the telephone to a number of different alternative health professionals about the children. For example, Ms K in her undated “to whom it may concern” letter (written I believe in 2012 or 2013) describes the father as “extremely upset with the condition of his little boy, to the point of tears and with many questions concerning his future learning, sport etc”.
188. The father has persisted with agitated distress in advocating for the children this year in terms of his perception that they are grieving their old life with him and in the Suburb B, and in terms of the perceived dangers in the maternal grandparents’ home.
189. The father has the capacity to meet the children’s basic needs for food, shelter, and protection from physical harm.
190. In my view, the father has strong capacity to meet the children’s needs including their more complex emotional, intellectual and developmental needs, in a day-to-day way whilst the children are in his care for contained periods of time such as for a weekend or for half of the school holidays.
191. The father is caring, kind, attentive and energetic. I observed that the children enjoy his company, and that he engages with them creatively and positively. The father is concerned for the children’s growth and development, and is likely to arrange to do positive and creative things with the children during their time together, on his own and with extended family. He will look forward to and plan for time with them, including holiday time. He will involve them with his extended family.
192. When the children are in his care, the father is able to set and to meet his own standards for the care and protection of the children, and the children are able to adapt to that.
193. There is likely some truth in the contention of the paternal aunts [for example, expressed by the paternal aunt Ms I in her affidavit of July 2013] that the father was the more attentive and proactive parent in engaging with the children during family visits or gatherings, when the parents were together.
194. When seen with the children, the father showed a stronger and more effective capacity to contain the children’s silly and disobedient behaviour than had the mother, in a persistent but not aggressive way.
195. I am concerned about the father’s ability to meet the children’s emotional and developmental needs over time and in collaboration with the mother and external agencies, if he was to have them in his care for more substantial time, such as 50% or more than 50% of the time.
196. In such a setting, I am concerned about the father’s tendency to project his own perspectives and emotions onto the children, and thus create in them a need to mirror back to him those perspectives and emotions.
197. In my view, this occurred when [Y] was young, when the father’s own obsessional protective separation anxiety was transmitted to [Y], and [Y] developed separation anxiety from the father.
198. Now, the father is describing a grief and desperate desire in the children to get back to him and to their old school and environment, that was not observed by me, or by Ms C, who has spent significant time with [Y]. Ms C felt that the loss or trauma narratives belong to the father, but she has not seen them in [Y].
199. In my experience, an expectation to mirror back to the father positive regard and admiration is not harmful when it is intermittent, and can in fact be a positive aspect of busy, idealised “special” time between a parent and child. But, when that expectation is present for more than 50% of the time and become ordinary it becomes a burden, and can contribute to anxiety and the development of insecure patterns of relating that can then disrupt the children’s development of adult intimate relationships.
200. I am concerned that the father’s emotional reactivity and intense fearful and protective responses to perceived environmental threat [related to obsessionality] can disrupt the children’s own emotional state and sense of security. Ms C noticed that [Y] became distressed in the context of paternal reactivity to painting occurring in the school, and subsequently developed some desire not to attend school on that day of the week “ever”. My concern is not that a parent may be cautious about use of chemicals in the school, but about the transmission of the father’s associated emotional and interpersonal intensity to the child.
201. In addition to threats directly involving the children, the father can become reactive, distracted and emotionally disrupted by threats in his personal or occupational life, such as occurred in his business in 2011/12.
202. If I am accurate in my impression that the father’s obsessionality and emotionality can disrupt his interpersonal relationships, the children will be more exposed to such issues with future partners or other persons, if living with the father for more substantial time.
203. I am concerned that the father’s obsessionality can lead him to fluctuate between intense over-engagement with an issue or external agency (such as a therapist) when preoccupied with that concern, and disengagement when distracted by an alternative pressing concern. In my view, this process occurred during 2011/12, and there has been some evidence of that pattern in the father’s engagement with Ms C.
204. I am concerned that the father’s enthusiastic engagement with the issue of current focus with regard to the children does not necessarily translate into teachability and an ability to put into practice new ways of thinking or new skills. Ms C. expressed some concern in that regard.
205. A recurrent psychotic episode would severely disrupt the father’s parenting capacity during the period of overt psychotic symptoms. I agree with Dr T that the risk of recurrence of psychosis is low, but that the father does carry risk of future depressive episodes.
206. In my view, there is significant risk that over the course of the children’s upbringing the father will have one or more further decompensations into obsessionality, depression or (less likely) psychosis. Such temporary reductions in paternal parenting capacity, if they occur, would be better negotiated by the children with less disruption, if they have a solid base of time living with the mother. These episodes would be more disruptive, though this would not be an insurmountable problem, if the children were spending more substantial time in paternal care.
207. Ongoing psychiatric monitoring and treatment of the father will reduce the likelihood of such decompensations, and detect and respond to them should they occur.
Mother’s mental state and parenting capacity
208. In my view, the mother does not have a current or ongoing mental disorder or substance misuse disorder.
209. The mother did not feel that she had ever been depressed. She did not describe herself as anxious, but I agree with the comments of Ms C that the mother can have some social anxiety, and can be rather coy and reticent when facing new or challenging social situations. But, this is not to an extent that it would be described as an anxiety disorder.
210. The mother did an anger management course. She doesn’t feel that she is an angry person. She “wouldn’t go push someone in the head”. But, when she found herself becoming distressed about “the things that Mr Gavalas has done”, she did learn to “stop, hold my breath, count to ten, and release… it releases me...”
211. Initially, the mother denied self-harm or thoughts of self-harm. She spoke of a relatively recent night when she “did drink” and was “upset”, but expressed a strong view that she had not been suicidal that night.
212. Later in the interview, the mother interrupted discussion of other matters to say, “can I tell you something?... I did take pills when I was 16… I went to Hospital”.
213. The mother described an episode of impulsive self-harm at age 16. She got off the telephone from talking to a guy that she liked, who had asked her out, and the maternal grandmother had said “you’re not going”. She took pills in front of the maternal grandmother, in a mood that was “more angry” than sad. The mother said, “the counsellor from the hospital said ‘let this girl go out’, but mum didn’t change… she didn’t let me go out… [so] my friends got me a job”.
214. The mother was prescribed antidepressants and took them for about a month on one occasion in her 20’s when a partner left her, and she was “heartbroken” and “teary”.
215. The mother hardly ever drinks alcohol. She will sometimes have one or two glasses of wine. When she was a single young adult, she would drink on weekends. She did not have alcohol-related problems. She stopped this just before she got married.
216. The mother has not used illicit drugs. She tried cannabis once at age 19.
217. In my view, the mother does not show significant personality dysfunction, She has some dependent personality traits, that is she can be unsure of herself and look to a strong or definite other in order to find security. She was devastated when she separated from her first partner in her 20’s, then has relied upon the father, then shifted her reliance onto her family.
218. The maternal uncle said to me, “Ms Theodorakis’s strong… she’s built herself up a lot [since separation]… she had held a lot insider her… we’re supporting her… she needs me… she needs my parents”.
219. If the father is accurate that the maternal family are toxic, then this is a concern as the mother is likely to continue to rely on them despite this. But, if (as is my impression) the maternal family are supportive and positive for the mother and children, then this dependence is a constructive coping style that provides a broader foundation of resources to the mother and children.
220. Such traits have been channelled positively into the mother’s becoming “one of [Ms C’s] best students”. The mother is encouraging of and feels strengthened by the children forming strong and positive connections with other adults, rather than being suspicious or jealous. The mother said of Ms C, “She has a good connection with my son… she’s perfect in her job, she works with special needs… she’s injected a lot of confidence into [Y]… he enjoys going to her… he confides in her”.
221. I observed the mother to have good reflective functioning, that is the ability to step back and to think about her own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others.
222. The mother can disconnect emotionally and interpersonally when under stress, and can be rather passive and avoidant when in that state.
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232. The mother has shown an ongoing commitment to the responsibilities and duties of parenthood. Prior to separation, she could be rather passive, unreliable, avoidant or ambivalent about following up with requests or recommendations of both schools and mainstream professionals on the one hand, and dietary or homeopathic professionals on the other. But, I have expressed a view that this lack of effectiveness resulted from the difficulties within the parental relationship, not from a lack of maternal commitment to the children.
233. Post-separation, the mother has shown consistent commitment to the children and her responsibilities to them. The children are attending school, the school do not have welfare concerns, and the mother helps out with reading groups. The mother attends Ms C regularly, and does the homework and follows up on recommendations.
234. I formed the view that the mother has the capacity to meet the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intellectual and developmental needs.
235. I observed the children to have a positive and reliant relationship with the mother. They appeared to feel secure and happy in her care, and described themselves in such terms. They did not present as frightened of the mother or any members of the maternal family.
236. Overall, my impression was that the mother is empathically attuned to the boys, and is thoughtfully and kindly raising them.
237. I found the mother’s impressions of the children’s state of mind about each parent and their current circumstances to be much more balanced, flexible, appropriately uncertain and arising from thoughtful observation of the children, than were those of the father. Her impressions were much closer to what the children expressed to me when seen alone, and to the impressions that I gained from my observations, and that were expressed by others such as Ms C and the school teacher.
238. The mother’s resultant attitudes and behaviour towards the children was thus less constructed, expectant and coercive than was the father’s behaviour towards the children. It was my impression that the mother clearly identified the children each as individuals separate from her, and gave each the space to form his own perspectives and to have his own feelings.
239. The mother observed that the children love their father and love to be with their father, but also love her, and love to be with her. She observed that when the children speak to the father on the telephone, they will repeat phrases such as “Daddy, I don’t want you to ever leave me”, with a dutiful automaticity, whilst appearing quite settled and almost distracted, sometimes “looking at the calculator, pressing buttons”.
240. A vulnerability in the maternal parenting capacity is that she can disconnect emotionally and interpersonally when under stress, and can be pragmatic and emotionally disconnected in making some of her parenting decisions. This likely occurred pre-separation when the mother was dealing with the stress of paternal mental illness and intrusive behaviour and the stress of raising a child or children with developmental difficulties, and post-separation when dealing with the stress of adjustment to separation and parental conflict.
241. The documents from the child care centre that [X] attended post-separation in 2013 include a written comment by a teacher who in September 2013 told the mother that [X] had been fine for the day, after initially crying at separation. The mother asked the teacher to please document this, as the father is “crazy… saying stupid things”, so that “I can show that [X] is OK and settled when with me”. The teacher comments that the mother then “walked on, not really focussing”.
242. There is then a written comment by a teacher in October 2013 that [X] presented “upset and distressed… crying and hugging [the mother]”. The mother explained that school orientation didn’t go well. The teacher suggested that emotionally, learning-wise and socially, [X] will struggle at school, and perhaps he should stay in child care another year. The mother said, “he’ll have to be ready”, cut off the conversation, and departed.
243. The mother did proceed to enrol [X] in Kindergarten for 2014, at the same school as [Y]. [X] has struggled, but the teacher reported that the mother has been diligent in helping him, and getting him extra support in terms of speech therapy.
244. My impression is that the mother may well at times have cut herself off from some of the children’s noisy and disrupted behaviour at home, rather than dealing with it, as reported by the women of the paternal family when they were on the telephone with the mother.
245. The mother’s tendency to cut off and to do what she needs to do to cope/ survive is of benefit to the children, as they need their mother to cope/ survive, but the mother’s parenting capacity and responsiveness will be maintained and improved if she is receiving support, for example from her family and a parenting and family therapist, is skilled up in dealing with child behaviour, and is protected from perceived threat from the father.
246. In addition, the mother lacks parenting capacity where it comes to proactively and decisively dealing with a child who is misbehaving. She at times will observe and think about such behaviour rather than deal with it, for example when she told the teachers in June 2011 that she thought that [Y] (then aged 4 ½ ) might be “too independent”, because he was “climbing on the shelves of the fridge to get what he wants”.
247. Associated with her lack of skills in dealing with such circumstances, the mother will cut off from the children’s misbehaviour, and justify it to herself as “just boys playing”. I think it likely that the silly behaviour between the boys that distressed the father and paternal family post-separation, that included swearing and physical intrusion on each other, does go relatively unchecked in the maternal home. I think it likely that the mother would exclaim over the telephone about behaviour in the background that other mothers such as the paternal aunts might have got up and dealt with, as has been described by the paternal aunts in their affidavits.
248. I observed in my office that the boys were quite squirmy, silly, disrespectful and disobedient to both myself and (moreso) the mother. When I was seeing the mother alone at the end of the day, the boys came up and entered my room on two occasions in a rather silly and directionless rather than an anxious way, and had to be encouraged back to the waiting room. The boys did not appear to have a pre-emptive containing awareness of maternal expectation, or knowledge of likely maternal sanction.
249. I observed that when the mother did feel a social pressure to control the boys’ behaviour, she was notably awkward and inept at doing so. As do many parents with an insecure and dependent sense of self, she very quickly escalated to appeal to the authority of and impending consequences from other adults in authority, rather than to rely upon her own authority as a parent.
250. After a maternal instruction to the boys to sit on their seats, or to calm down, or to give proper rather than silly responses to my questions, or not to poke at each other was ignored, the mother repeated her instruction in a more imploring tone, then spoke stern threats, but in a hesitant tone. She said, “I’ll leave”, and “Dr P will tell [the name of each child’s school teacher]”, and “I’ll count to 10” [she did not proceed to do so]. The children ignored these instructions and threats in a manner that suggested to me that they were accustomed to doing so, and no negative consequences came to pass. The mother did not count.
251. When I saw the mother after this family interview, she minimised the significance of the children’s misbehaviour, and commented in a rather coy and embarrassed way that they were “not usually like that”. I asked about the “counting to 10”. The mother responded in a coy and hesitant manner, lacking detail, that suggested to me that she has not actually used this strategy in any decisive and effective way. She said, “Oh… I’ve only recently started using that…”. When asked what usually happens, she said, “he does what he has to do”. When asked what happens if she gets to 10, she said “Oh… well… it’s only happened once or twice… I’d [she slipped into the hypothetical rather than describing an actual event]… give them a smack on the bottom or something”.
252. When I then asked the mother how she would usually deal with the children if they behaved in this way, she spoke with much greater self-assuredness and substance. She said, “[X]… when we’re all together… he sometimes acts like this… but the teacher tells me that he’s quite good in class”. At home, “I would give him something to do, and he settles… he loves coloring in, he loves cutting and pasting”.
253. In keeping with her described strategies, when I asked the mother to join with the children in building or making something using one of the boxes of toys in my room, the mother showed much greater capacity to manage them. This was because she was able to utilise her skills in diverting or channelling the children’s energies through encouragement and positive engagement and creative initiative. Even though the boys were still in quite a silly and escalated mood, she drew them into building a Lego tower with her, and they did engage with and complete this task with her. She utilised the competitive nature of the boys, challenging them to see who could pack away faster, and this was effective. But, the mother’s vulnerability was seen in her being quite accommodating, for example when [X] knocked the half-completed tower over she laughed and made this part of the game rather than challenging him, and in many of her instructions being ignored by the boys during the process.
254. I think it likely that in home life, the mother “gets around” her lack of absolute authority over the boys through use of positive engagement, encouragement, daily routine, and the input of her extended family.
255. I note that during the same interview in mid-2011 that the mother told the teacher that the 4 ½ year old [Y] was “climbing on the shelves of the fridge to get what he wants”, she told the teacher that [Y] had an interest in trucks, so the parents had taken him to the steelworks, and that he liked being outdoors, and painting.
256. The maternal uncle Mr J said of the mother that the mother knows how to calm [Y] down, if he is agitated. The maternal uncle added that [X] has done a “360 degrees [sic.] since he started school”, and is behaving much better. He was always a good kid, but previously, was bored at home”.
257. I note that the teacher has not found [X] to have problem behaviours at school, and Ms C has not found [Y] to have problem behaviours at therapy. The mother and Ms C told me that each boy is more settled without the presence of the other, and I observed this in my individual interviews with the boys.
258. In my experience, this picture of parental overacommodating behaviour is common in the parents of children with developmental difficulty, particularly of an autistic type, as they learn from experience that the child is difficult to push or to expect too much of. It is also common in mothers who have experienced a partner relationship in which they have felt coerced or disrespected.
259. In both cases, a parent who has some reflective capacity and empathic attunement (such as, I would argue, the mother) can be assisted to “firm up”, and to better both create a strong, pre-emptive expectation of good behaviour, and manage difficult behaviour when it arises.
260. This is an area where the mother would benefit from some therapeutic intervention, and I note that Ms C felt that she had already helped the mother to be firmer than she had been. I think it likely that the mother would take on board such an intervention, and put it into practice effectively.
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2l. Such further issues as the expert considers relevant
312. In my view, this is a family for whom (if the court finds that the children are not at risk in either household) it is strongly in the interest of the children to maintain a significant relationship with both parents. This is because:
312.1. The two parents each have quite different personalities, styles of relating, and strengths and weaknesses, and the children’s character development will be enriched by being raised by both of them.
312.2. Each parent is a link with a loving extended family.
312.3. Each parent has their vulnerabilities, and a significant relationship with both parents allows the children to turn more to one if the other faces a period of struggle.
312.4. [Y] (and possibly also [X] to some extent) has significant developmental difficulties and is going to require significant additional parenting time and resources to raise. Broadening the parenting base and giving each a break from the task will allow more depth and resilience of parenting resources available to the children.
313. In my view, the issue of the capacity of each parent to support the children’s ongoing relationship with the other is important.
314. Whilst the father supports the mother-child relationship in principal, I am concerned that the father lacks capacity to support the children’s ongoing relationship with the mother, in the following ways:
314.1. The father maintains an idealising/ devaluing perspective that the children are pining and praying and pleading for return to the joy of his care, and experiencing distress, fear and abuse in the mother’s care. He induces responses from the boys that reinforce this perspective.
314.2. The father has had a longstanding set against the maternal grandparents and maternal extended family. In the interview with me and with JIRT he made globally dismissing and rejecting reference to “that house”, being the maternal grandparents’ home.
314.3. The father’s obsessionality is such that whilst he supports the mother-child relationship in principal, he will seek to intrude on and control that space. For example, he told me that he that the mother “needs to move out of that house”, and he would return them to their old school. When the father’s mind is stuck on an issue, this issue will fill his mind and agitate him to action, and he does not take perspective or show respect for other views.
314.4. The father’s paranoid stance is such that I feel that he is likely to attribute causality for any problems in the boys to deficiencies in the maternal care environment, as in the past he has sought out causality in diet or environmental toxins. In some ways, the current allegations against the maternal uncle are an example of the same, and I am concerned that there will be more such attributions to follow.
315. Currently, aided by their strong foundation of positive connection with the mother, their majority of time spent with the mother, and perhaps by their young age and in [Y]’s case his autism, the children are maintaining their positive connection with the mother despite the father’s attitudes and behaviour. But, I am concerned that if the children spent close to 50% or more than 50% of their time with the father, his attitudes and behaviour are likely to influence the children away from respect for and valuing of the mother, and may place their relationship with the mother at risk.
316. The father has supported the children’s relationship with the mother in some ways. The children appeared free to speak positively about time with the mother in the father’s care. When I saw the children with the father he appeared to know about their interests and pastimes, and asked about these in a specific and positive way.
317. I noted that despite her own difficult experience of relationship with the father, the mother presented as a woman who respects the father and the father’s role in the children’s lives, and is very balanced and child-focussed with regard to these issues. The mother’s attitudes and behaviour appeared to support the children’s relationship with the father, rather than to place it in jeopardy.
317.1. When the mother was outlining her concerns about the father’s intense and coercive behaviour towards the children, I challenged her with her earlier statement that orders should “stay as they are”, and asked whether maybe the children should spend even less time with the father. With an ironic smile and some warmth, the mother said, “the kids are happy with the current orders… I don’t want to hurt the kids… they’d be devastated [by having to see less of the father]”.
317.2. Similarly, when the mother was describing [Y]’s distress and confusion on the day that he did not want to go into class because the father had expressed fears about the school being painted, I asked whether this had disrupted [Y] for quite some time, or whether [Y] had “clicked back in” [my words] to routine once he came back to the mother. This was an opportunity for the mother to amplify the negative impact of the father’s behaviour, or to attribute blame to the father for problems in her home, but the mother paused, smiled, and said, “he clicked back in OK, [but I didn’t like to see him upset that day]”.
317.3. When I asked the children in front of the mother what they like to do for fun when they are with dad, both gave positive responses without inhibition or vigilance. There appeared to be space in the children’s relationship with the mother for them to enjoy time with the father.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Injunction
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Procedural Fairness
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Jurisdiction
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Remedies
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Standing
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